### IN THE TENTH COURT OF APPEALS

No. 10
- 16
- 00156
- CV
IN RE ELIZABETH HARP ER
Original Proceeding

MEMORANDUM OPINION
Relator Elizabeth Harper seeks mandamus relief pertaining to the trial court’s denial of her plea to the jurisdiction in the underlying original SAPCR filed by Dawn and
Michael Caldwell. 1 Harper’s plea to the jurisdiction alleges that the Caldwells lack standing under Family Code subsection 102.003(a)(9), which provides that an original suit may be filed at any time by “ a perso n, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the dat e of the filing of the petition.” T EX

. F AM

. C ODE A NN

. § 102.003(a)(9)

1 Briefly, the factual background is that Harper gave birth to G.C.H. in Oklahoma, and under an agreement with the Caldwells, they took G.C.H. from the hospital, ostensibly for an anticipated adoption, but Harper changed her mind and sought possession of G.C.H. When she gained possession of G.C.H

. through Oklahoma proceedings , she returned to Texas with him.In re Harper Page 2

(West Supp. 201 6 ). Ha rper argues that the Caldwells did not timely file their suit within 90 days of the end of the period in which they had “actual control” of G.C.H. and thus lack standing under subsection 102.003(a)(9)

. The Caldwells had been appointed guardians of G.C.H. i n O klahoma, but i n Harper’s mandamus proceeding in the Supreme Court of Oklahoma, the Oklahoma district court was directed to remove the Caldwells as G.C.H.’s guardians in a September 14, 2015 order that is filed

- marked September 15, 2015. The Oklahoma Su preme Court’s
order does not mention care, control, or possession of G.C.H.
In an order file

- marked September 16, 2015, the Oklahoma district court removed
the Caldwells as guardians and revoked their guardianship letters, but it too does not mention care, control, or possession of G.C.H. The reporter’s record from a September 22, 2015 hearing on Harper’s petition for writ of habeas corpus reflects that the Oklahoma
dist rict court signed a writ of assistance on September 17, 2015 , but that writ is not in the
record , and nothing in the record otherwise indicates if it was served on the Caldwells or the content of that writ, including whether it states anything pertaining t o the care,

co ntrol, or possession of G.C.H. The reporter’s record of the September 22 hearing on Harper’s habeas petition
indicates that Harper’s petition for writ of habeas corpus was filed in Oklahoma district

court on September 21, 2015 and that the wr it of habeas corpus issued that day. While the writ of habeas corpus is not in the record, it is obvious from the reporter’s record that the writ of habeas corpus required the Caldwells to produce G.C.H. at the September 22 hearing. The only mention of s ervice of the writ of habeas corpus on the Caldwells is aIn re Harper Page 3

statement by the Caldwells’ attorney during the September 22 hearing that the writ had
been received “today.” The reporter’s record further reflects that Harper obtained possession of G.C.H. at th a t hearing. Harper contends that, based on the above events and Oklahoma orders, the 90

- day time period in which the Caldwells had to file their SAPCR in Texas began to run on
either September 14 or 15 and that the Caldwells had to file their SAPCR no later than December 14 or 15, but they filed it on December 17. Harper a sserts that when the Oklahoma Supreme Court and the Oklahoma district court entered their respective
orders on September 15 and September 16 pertaining to the guardianship of G. C. H., the
C aldwells ’ continued possession of G.C.H. ceased to be “ legal ” (or lawful) and they thus
did not have “actual c ontrol ” of G.C.H

. as of one of those dates. Accordingly, Harper contends that the trial court abused its discretion by denying her plea to the jurisdiction , whic h asserted that the Caldwells lack standing because the y filed suit after the 90

- day period in subsection 102.003(a)(9) had expired.

Mandamus is an extraordinary remedy that is available only when the trial court has clearly abused its di scretion and there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135

- 36, 137 (Tex. 2004) (orig. proceeding). A clear abuse of discretion occurs when a trial court “reaches a decision so arbitrary and unreasonable as t o amount to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Id. Therefore, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id. at 840. The improper denial of a plea to the jurisdiction is generally not reviewable by mandam us because it involves a question of law that can be addressed by ordinary appeal. See In re State Bar of Tex., 113 S.W.3d 730, 734In re Harper Page 4

(Tex. 2003) (orig. proceeding). However, mandamus review is appropriate when there is a jurisdictional dispute in a procee ding involving conservatorship issues. See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994) (orig. proceeding); In re Green, 352 S.W.3d 772, 774 (Tex. App.

— San Antonio 2011, orig. proceeding). This is due to the unique and compelling circumstances present ed when the trial court decides issues of conservatorship. See Geary, 878 S.W.2d at 603. Because temporary orders are not appealable, mandamus is an appropriate remedy when a trial court abuses its discretion in issuing temporary orders in a SAPCR. See In re Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding)

. A party seeking conservatorship of a child must have standing to do so. In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.

— Houston [1st Dist.] 2015, orig. proceeding). Because standing i s implicit in the concept of subject matter jurisdiction, it is a threshold issue in a conservatorship proceeding. In re N.L.D., 344 S.W.3d 33, 37 (Tex. App.

— Texarkana 2011, no pet.). A party’s lack of standing deprives the court of subject matter jurisd iction and renders subsequent trial court action void. In re Smith, 260 S.W.3d 568, 572 (Tex. App.

— Houston [14th Dist.] 2008, orig. proceeding). Whether a trial court has subject matter jurisdiction is a question of law, which we review de novo. In re K .D.H., 426 S.W.3d 879, 882 (Tex. App.

— Houston [14th Dist.] 2014, no pet.). In re Lankford,

--- S.W.3d

--- , --- , 2016 WL 4447697, at *2 (Tex. App.

— Tyler Aug. 24, 2016, no pet. h.). Additionally, the relator bears the burden of providing a sufficient reco rd to establish a right to mandamus relief. See In re Schuttpelz , 10

- 15

- 00 072

- CV, 20 15 WL 1967834, at *2 (Tex. App.

— Waco Apr. 30 , 20 15 , orig. proceeding ) (mem. op.)

. In Lankford , the Tyler court addressed the contention that “actual control” to
establish standing under subsection 102.003(a)(9) means “ legal control.” 2 Lankford,

---

2 In Lankford , the court discussed In re K.K.C. , 292 S.W.3d 788 (Tex. App.

— Beaumont 2008, orig. proceeding), noting that there the court opined that “ ‘ c ontrol,’ a s us e d in s u bs ec t i on ( a ) (9 ) , must me a n somethi n g m ore than the c ontrol i m pl i c it i n h a vi n g ca r e a nd p o ssession of the c hi l d if the wo r d is to b e g iven e f f e c t a nd tr e a ted a s more than surplus a g e
. ” Id

. a t 7 92. Th e r e f o r e , “ [ t ] he wo r d must beIn re Harper Page 5

S.W.3d at

--- , 2016 WL 4447697, at *3. After surveying the split in authority among Texas courts on the issue, 3 the Tyler court agreed with the Austin court in Jasek :

[W] e conclude that, had the legislature intended “control” to mean “legal control” instead of “control” in its ordinary sense, it could easily have defined it as such. Or it could have defined “actual control” to mean “legal control.” But it did neither. T herefore, we agree with the reasoning in Jasek and hold that its definition of “actual control” reflects the legislature’s intent when it enacted the “control” requirement of section 102.003(a)(9). Id.,

--- S.W.3d at

--- , 2016 WL 4447697, at *3. Harper also cites to a common - law exception to standing that is similar to the “legal control” argument: “ The courts have carved out one exception to this standing rule. If possession is maintained in violation of a valid court order, that possession does

not confer standing to bring suit affecting the parent

- child relationship. ” In re S.S.G., 208 S.W.3d 1, 3 (Tex. App.

— Amarillo 2006, pet. denied) (citing Perez v. Williamson, 726 S.W.2d 634, 636 (Tex. App.

— Houston [14th Dist.] 1987, no writ) )

. Assuming witho ut deciding that either the “legal control” theory or the Perez exception applies , we conclude that, based on the record before us, Harper has not shown

und e rstood in the c ont e x t of the ri g hts, dut i e s, a nd r e spons i bi l i t ies of a p a r e nt.” Id

. The c o u rt then c on c luded that “ c ontrol” r e f e rs to “ t he pow e r o r a uthori t y to g uide a nd m a n a g e , a nd includ e s the a uthori t y to m a ke d ec is i ons of l e g a l s i g nifi ca n c e for the c hi l d.” Id

. a t 793. Lankford,

--- S.W.3d at

--- , 2016 WL 4447697, at *4.

3 Compare Jasek v. Tex. Dep’t of Fam

. & Prot

. Servs., 348 S.W.3d 523 (Tex. App.

— Austin 2011, no pet.); In re K.G., No. 05

- 14

- 01171

- CV, 20 16 WL 3265215, at *6 (Tex. App.

— Dallas June 13, 2016, no pet.) (mem. op.); In re K.S., No. 14

- 15

- 00008

- CV, 20 16 WL 1660366, at *4 (Tex. App.

— Houston [14th Dis t.] Apr. 26, 2016, pet. denied) ; In re B.A.G., No. 11

- 11

- 00354

- CV, 20 13 WL 364240, at *10 (Tex. App.

— Eastland Jan. 13, 2013, no pe t.) (mem. op.); and In re K.K.T., No. 07

- 11

- 00306

- CV, 20 12 WL 3553006, at *4 (Tex. App.

— Amarillo Aug. 17, 2012, no pet.) (mem. op.) with In re K.K.C. , 292 S.W.3d 788 (Tex. App.

— Beaumont 2008, orig. proceeding) ; In re H.S. , No. 02

- 15

- 00303

- CV, 2016 WL 4040497, at *5 (Tex. App.

— Fort Worth July 28, 2016, pet. filed ) (mem. op.); In re N.I.V.S. , No. 04

- 14

- 00108

- CV, 20 15 WL 1120913, at *5 (Tex. App.

— San Antonio Mar. 11, 2015, no pet.) (mem. op.).In re Harper Page 6

that the Caldwells had illegal control of G.C.H.

— or control of him in defiance of a court
order

— such th at they did not file their SAPCR after the expiration of 90 days from when
their allegedly illegal or defiant control began. As noted above, neither the Oklahoma Supreme Court’s September 15 order nor the Oklahoma district court’s September 16 order pertaining to the Caldwell’s guardianship of G. C

. H . mention the care, control, or possession of G.C.H. And while the
record refers to the Oklahoma district court’s issuance of a writ of assistance on September 17, that writ is not in the record, and nothi ng else in the record indicates that it pertains to the Caldwells ’ care, co ntrol, or possession of G.C.H. and their possible
defiance of the writ

. In conclusion, Harper has not provided a sufficient record that would establish her right to mandamus relief under her legal theory. Accordingly, we deny the petition
for writ of mandamus.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis , and Justice Scoggins (Chief Justice Gray concurs in the judgment denying the petition for writ of mandamus. A separate opinion will not issue. He notes, however, that he would deny the petition solely on the merits that have nothing to do with the sufficiency of the record. See Chief Justice Gray’s Dissent to Request for Response in this proceeding issued on June 2, 2016.) Petition denied Opinion delivered and filed October 26 , 2016 [OT06]